888.207.6004Probate and Trust Law
Trust/Living Trust
The advantage to making a trust:
Property left through a trust or living trust does not go through probate court prior to reaching the beneficiary. A trust can be made during the life of the trustee, or a Living Trust (inter vivos), or it can be created according to the terms and conditions states in a will upon the trustee’s death.
Estate Planning
What is included in an Estate?
The fair market value of the decedent’s property and interests at the time of death. This could include cash, real estate, trusts, annuities, business interests and other interests. This excludes property solely owned by a spouse or another and lifetime gifts, depending on there stage of completion. The property included in an Estate does not necessarily equal the value used to evaluate Estate Tax.
Wills
Why are wills important?
No one wants to contemplate the possibility of his/her death. Should something happen to you, how will your assets be disposed? Without a current will, the court will decide what is to become of your assets according to what they feel, is best. Having a will allows you to control the distribution of your assets in the event of your death and eliminates potential arguments and hardships amongst your beneficiaries.
What are components of a valid will?
To be valid, a will must be in written, typed or printed form, signed with your signature at the end of the document and witnessed by at least two others present at the time of signing. If a will does not comply with these requirements, the court has discretion to grant, or not grant, probate, which could potentially invalidate your final wishes. It is important to meet with an attorney who specializes in this area.
What if I die without a will?
Dying without a will, or “intestate”, your estate is distributed to court-determined beneficiaries in accordance with the will of the court. Some typical examples of potential outcome include:
If you die without a spouse or children, but are survived by your parents, your parents generally receive all of the assets of your estate.
- If you die and are survived by a spouse, the whole of your estate will generally pass to your spouse.
- If you die and are survived by a spouse and children, the estate will most likely be divided between your spouses and children, as determined by the courts. This could potentially burden your spouse who may have to sell a family home in order to pay out the shares to the children.
- If you die without a spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst the siblings.
- Additional reasons for having an updates will include:
- Protecting a family owned businesses and lifetime of assets
- Having a smooth transfer of assets in the event of your death
- To secure your children’s future and nominate guardians (for underage children)
- For those in a second marriage, a will provides the guidelines by which beneficiaries from prior and current relationships are divided- although a marriage will generally invalidate any will made prior to the date of marriage, a divorce does not automatically cancel a will.
- Additional reasons for having an updates will include:
Living Will
Advanced statement regarding advanced statement of the preference for life sustaining procedures and treatments in the event one becomes incapacitated or terminally ill.
Probates
At death, your will goes through a process by which your will be determined to be your final wishes and a person or institution is appointed as administer of your estate, per your wishes. The probate consists of the gatherings of assets, payment of debts and taxes of administration and distributing the assets amongst the beneficiaries in the will.
Power of Attorney
There are three types:
Nondurable- Take effect immediately and remains in effect until it is revoked by the Principle or they become mentally incompetent or deceased. This form of power of attorney is typically used for a specified purpose or transaction.
Durable- Allows one to continue to act on behalf of the Principle after they are mentally incompetent or physically capable of making decisions. The power of attorney will remain in effect until the Principle revokes it or is deceased.
Springing- Is to be in effect at a future time in the event of disability or illness of the Principle. This power of attorney remains in effect until the Principle’s death or revocation by a Court.
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